Scott's v. Chesterman

Citations

• 117 Va. 584
• 85 S.E. 502
• 1915 Va. LEXIS 74

Syllabus

<p>1. Evidencf—Custom—Contracts.—Where the language of a contract is clear and unambiguous, evidence of a local custom or usage of trade to vary the terms of the contract will not be received. Such evidence will not be admitted under the guise of explaining language used in the contract, to engraft upon it a new provision upon which to base a substantial defense, and especially is this the rule where the usage or custom is not relied on in the pleading.</p> <p>2. Custom—Pleading—Proof—Generality of Custom—Knowledge.— Customs and usages are generally regarded as facts, and like other facts should be pleaded and proved. Furthermore, knowledge of the existence of a custom must be brought home to the parties to be affected thereby unless the evidence shows that it is so uniform and notorious at the place where parties affected by it reside as to raise a prima facie presumption that they knew of it.</p> <p>3. Instructions’—Evidence to Support—Appeal and Error.—It is error to give an instruction when there is no evidence upon which to base it except evidence improperly admitted.</p> <p>4. Building Contracts—Architect’s Certificate of Completion— What Sufficient—Case at Bar.—Under a building contract providing that the owner is not to be liable “except upon the final certificate of the architects in writing, signed by them, that the work had been accomplished to their satisfaction and that of the owner” when no form of writing is specified in the contract, but merely that the approval of the architects shall be “by a writing or certificate,” any writing which fairly carries out the purposes for which it was intended is sufficient. In the case at bar, the certificate of the architects was first simply “O. K.” and subsequently “Approved.” each signed by the architects. Whether this was a sufficient compliance with the contract was rightly left to the jury under proper instructions from the court.</p> <p>5. Damages—Building Contracts—Defective Performance.—■‘Where there are d